IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1324
Filed: 17 July 2018
Catawba County, No. 16 CRS 2841
STATE OF NORTH CAROLINA
v.
NEIL WAYNE HOYLE
Appeal by defendant from judgment entered 1 June 2017 by Judge Jeffrey P.
Hunt in Catawba County Superior Court. Heard in the Court of Appeals
15 May 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Tiffany
Y. Lucas, for the State.
Anne Bleyman for defendant.
ARROWOOD, Judge.
Neil Wayne Hoyle (“defendant”) appeals from judgment entered upon his
conviction for felony indecent exposure. For the following reasons, defendant is
entitled to a new trial.
I. Background
On 6 June 2016, a Catawba County Grand Jury indicted defendant on one
count of felony indecent exposure and one count of misdemeanor indecent exposure
based on allegations that defendant exposed himself to a mother and her four-year-
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Opinion of the Court
old son (the “child”) on 16 March 2016. Defendant’s case was tried in Catawba
County Superior Court before the Honorable Jeffrey P. Hunt beginning on
30 May 2017.
The evidence at trial tended to show that just after the mother and her son
arrived home on 16 March 2016, as the mother was unloading groceries and the child
was playing in the front yard, a man later identified as defendant pulled up in front
of the house with the passenger side of his vehicle facing the house. The road was
slightly elevated from the front yard. Defendant first asked for directions. When the
mother said she could not help him, defendant offered to work on the house and
offered his business card. The mother declined several times, but defendant was
persistent that she take his card. The mother approached defendant’s vehicle with
several grocery bags in her hand to take the card, believing defendant would then
leave and she could finish unloading her groceries. The child was swinging on a
nearby tree in the front yard, but did not approach defendant’s vehicle. As the mother
reached into defendant’s passenger window and took the card from defendant, she
saw that defendant had his hand on his exposed penis. The mother jerked back,
dropped her bags, and fell into the small ditch alongside the road. The mother could
hear defendant laugh and drive away as she gathered herself, grabbed her son, and
ran into the house.
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Opinion of the Court
Once inside, the mother called the police. After several minutes, the mother
went outside to gather the things she dropped and noticed that defendant’s card was
on the ground. When the police arrived, the mother told them what happened and
gave them defendant’s card. The police were able to identify a suspect based on the
information on the card and the mother positively identified defendant in a
photograph shown to her by the police. Defendant was in his mid-40s.
The mother testified that defendant never verbally acknowledged the child,
but did look over at him. The mother also testified that she did not think the child
saw what defendant was doing. Based on the mother’s description of the events and
analysis of the scene, the investigating officer testified that the child was
approximately 20 feet away from the location where defendant pulled up in front of
the house. The tree the child was playing on was approximately 14 feet away from
the location where defendant pulled up in front of the house.
Defendant turned himself in to police on 18 March 2016. At that time,
defendant was questioned and arrested. Defendant acknowledged that he pulled up
to the house and interacted with the mother. Defendant, however, denied exposing
himself.
On 1 June 2017, the jury returned verdicts finding defendant guilty of felony
indecent exposure and misdemeanor indecent exposure. The trial court entered
judgment on felony indecent exposure sentencing defendant to a term of 10 to 21
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Opinion of the Court
months imprisonment and imposing sex offender registration and satellite-based
monitoring requirements on defendant upon his release. The trial court arrested
judgment on misdemeanor indecent exposure. Defendant gave notice of appeal in
open court.
II. Discussion
On appeal, defendant challenges the trial court’s denial of his motions to
dismiss and his request for a special jury instruction for felony indecent exposure.
1. Motion to Dismiss
At the close of the State’s evidence and at the close of all the evidence,
defendant moved to dismiss the charges,1 specifically arguing the State did not
present sufficient evidence to support the felony indecent exposure charge.
Defendant now challenges the trial court’s denial of his motions.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant’s
motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert.
1 Defendant referred to his motion as a motion for a directed verdict. The trial court, however,
properly considered it as a motion to dismiss for insufficiency of the evidence.
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Opinion of the Court
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its
determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995). “If the evidence is sufficient only to raise a
suspicion or conjecture as to either the commission of the offense or the identity of
the defendant as the perpetrator of it, the motion should be allowed.” State v. Powell,
299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
This Court has explained that, as defined in N.C. Gen. Stat. § 14-190.9(a1),
“[t]he elements of felony indecent exposure are that an adult willfully expose the
adult’s private parts (1) in a public place, (2) in the presence of a person less than
sixteen years old, and (3) for the purpose of arousing or gratifying sexual desire.”
State v. Waddell, 239 N.C. App. 202, 203, 767 S.E.2d 921, 922 (2015) (internal
quotation marks omitted). Defendant now contends, as he did below, that there was
insufficient evidence that the alleged exposure was “in the presence of” the child to
support the felony indecent exposure charge. Therefore, defendant contends the trial
court erred in denying his motions to dismiss. Defendant does not challenge the
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Opinion of the Court
sufficiency of the evidence related to the other elements of felony indecent exposure,
or the evidence of misdemeanor indecent exposure.
This Court has made clear that it is not necessary that a defendant expose
himself “to” a child; all that is required under N.C. Gen. Stat. § 14-190.9(a1) is that a
defendant expose himself “in the presence of” a child. Id. at 205, 767 S.E.2d at 924.
In State v. Fly, 348 N.C. 556, 501 S.E.2d 656 (1998), our Supreme Court
discussed the meaning of “in the presence of” for purposes of indecent exposure. In
that case, a woman rounded a turn on the stairs up to her condominium and looked
up to see the defendant bent over at the waist, with his short pants pulled down to
his ankles, and wearing nothing else besides a backwards baseball cap. Id. at 557,
501 S.E.2d at 657. The Court first addressed whether the defendant exposed his
private parts even though the woman only described seeing the defendant’s
“ ‘buttocks, the crack of his buttocks.’ ” Id. at 557, 559, 501 S.E.2d at 657, 658.
Holding the jury could find the defendant did expose his private parts, the Court
explained that “ ‘ “[i]t is not essential to the crime of indecent exposure that someone
shall have seen the exposure provided it was intentionally made in a public place and
persons were present who could have seen if they had looked.” ’ ” Id. at 561, 501 S.E.2d
at 659 (quoting State v. King, 268 N.C. 711, 712, 151 S.E.2d 566, 567 (1966) (quoting
33 Am. Jur. Lewdness, Indecency and Obscenity § 7, at 19 (1941))) (emphasis added).
The Court further explained that
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Opinion of the Court
[l]ikewise, the current statute does not require that private
parts be exposed to a member of the opposite sex before the
crime is committed, but rather that they be exposed “in the
presence of” a member of the opposite sex. The statute does
not go to what the victim saw but to what defendant
exposed in her presence without her consent.
Id. (internal citation omitted) (emphasis in original). Thus, in Fly, “the fact that [the
woman] did not crane her neck or otherwise change her position in an attempt to see
more of defendant’s anatomy than he had already thrust before her face [did] not
defeat the charge of indecent exposure.” Id.
In State v. Fusco, 136 N.C. App. 268, 523 S.E.2d 741 (1999), the defendant was
convicted of indecent exposure based on evidence showing that a woman and her
mother looked out a window and saw the defendant lying on a creek embankment
adjacent to their backyard masturbating with his robe open. The defendant appealed,
arguing the charge for indecent exposure in the presence of the mother should have
been dismissed because the mother never testified and testimony elicited on her
behalf was hearsay. Id. at 269, 523 S.E.2d at 742. This Court held “the mere fact
that [the mother] did not testify does not justify dismissal of the charge for indecent
exposure in her presence[,]” id. at 270, 523 S.E.2d at 742, noting that “[the mother’s]
testimony was not even needed to substantiate [the] charge[,]” because
[i]ndecent exposure involves exposing one’s self “in the
presence of” a person of the opposite sex. The victim need
not actually see what is being exposed. Accordingly, the
State was not required to produce evidence as to what [the
mother] actually saw; it only needed to show that
defendant was exposing himself and that [the mother] was
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Opinion of the Court
present during this exposure and could have seen had she
looked.
Id. (emphasis added).
Based on Fly and Fusco, defendant contends that “while North Carolina
authority does not require that a complaining witness change their position or be
within a certain distance in order to see a defendant’s exposed private parts, . . . [i]n
order to be a victim of indecent exposure it remains necessary that the complaining
witness could have seen the private part if they had looked without much effort.”
Defendant contends there was insufficient evidence in this case that the child could
have seen the alleged exposure to support the presence element. In fact, defendant
contends the evidence shows that the child could not have seen the alleged exposure
without effort. Defendant asserts that in order to see the alleged exposure, the child
would have had to move away from the tree he was playing on, go up to the road,
move his mother out of the way, and lean into the passenger window.
The State agrees with defendant that the exposure need only have been “in the
presence of” the child. See Waddell, 239 N.C. App. at 205, 767 S.E.2d at 924. The
State, however, takes issue with defendant’s reliance on Fly and Fusco for the
meaning of “in the presence of” in the context of an indecent exposure case. The State
instead emphasizes that “presence” should be given its plain meaning and looks to
Black’s Law Dictionary and a probation violation case, see State v. White, 129 N.C.
App. 52, 496 S.E.2d 842 (1998), to support its argument that “presence” should be
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Opinion of the Court
interpreted by proximity. Thus, the State argues defendant’s alleged exposure was
“in the presence of” the child where the child was within sight or call, within the
immediate vicinity, playing on a nearby tree.
Upon review of the arguments and the cases, we agree with defendant that Fly
and Fusco are controlling and provide the relevant law regarding presence in indecent
exposure cases in North Carolina. Under Fly and Fusco, in order for an exposure to
be “in the presence of” a child, the child must be present during the exposure and
have been able to see the exposure had the child looked. Ultimately, however, we
disagree with defendant’s argument that the trial court erred in denying his motions
to dismiss the felony indecent exposure charge. The evidence and circumstances in
this case, when viewed in the light most favorable to the State, were sufficient to
withstand defendant’s motion to dismiss and allow the jury to decide whether any
exposure by defendant was in the presence of the child.
Nevertheless, in order for the jury to decide the issue, they must be issued
adequate instructions on the law in North Carolina.
2. Jury Instructions
On appeal, defendant also takes exception to the trial court’s denial of his
request for the inclusion of a special jury instruction on the meaning of presence in
the instructions for felony indecent exposure.
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Opinion of the Court
“The prime purpose of a court’s charge to the jury is the clarification of issues,
the elimination of extraneous matters, and a declaration and an application of the
law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,
191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974). “Whether a jury
instruction correctly explains the law is a question of law, reviewable by this Court
de novo.” State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d 22, 29, disc. review
denied, 364 N.C. 327, 700 S.E.2d 926 (2010).
In reviewing the trial court’s jury instructions, this Court must consider the
instructions in their entirety. See State v. Wright, 302 N.C. 122, 127, 273 S.E.2d 699
703 (1981). “Where an instruction is requested by a party, and where that instruction
is supported by the evidence, it is error for the trial court not to instruct in substantial
conformity to the requested instruction.” State v. Rose, 323 N.C. 455, 458, 373 S.E.2d
426, 428 (1988). “However, an error in jury instructions is prejudicial and requires a
new trial only if ‘there is a reasonable possibility that, had the error in question not
been committed, a different result would have been reached at the trial out of which
the appeal arises.’ ” State v. Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712
(2009) (quoting N.C. Gen. Stat. § 15A-1443(a) (2007)).
In this case, the defense requested an addition to the pattern instruction for
felony indecent exposure to define presence as set forth in Fly and Fusco. Specifically,
defendant requested that at the end of the third element in the pattern instruction
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Opinion of the Court
for felony indecent exposure, “that the exposure was in the presence of at least one
other person[,]” see N.C.P.I.--Crim. 238.17A, the trial court additionally instruct that
“[t]he person need not actually see what is being exposed . . . but that the person could
have seen had they looked.” After considering the defendant’s requested special
instruction overnight, the trial court denied the request. The trial court instructed
the jury on felony indecent exposure pursuant to the pattern instructions, including
additional language that it is not necessary that the person see the exposure, but
excluding the language requested by defendant “that the person could have seen had
they looked.”
As discussed above, defendant’s requested instruction on presence was a
correct statement of the law under Fly and Fusco. Furthermore, it is clear that the
substance of the requested instruction was not included in the instructions issued for
felony indecent exposure. Thus, it was error for the trial court not to give the
requested instruction. Lastly, it is likely that without the additional instruction
defining presence pursuant to Fly and Fusco, the jury considered only the child’s
proximity to the alleged exposure in determining whether the exposure was “in the
presence of” the child because, absent the requested instruction, there was no reason
for the jury to consider whether the child could have seen the alleged exposure had
he looked. Thus, defendant was prejudiced by the omission of the requested
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Opinion of the Court
instruction. For these reasons, the trial court’s failure to give the requested
instruction constitutes reversible error warranting a new trial.
III. Conclusion
The trial court in this case did not err in denying defendant’s motion to dismiss
the felony indecent exposure charge because sufficient evidence was presented to
allow the jury to decide whether the alleged exposure was “in the presence of” the
child. However, a new trial is required because the trial court failed to give adequate
instructions upon defendant’s request for a special instruction explaining the
meaning of presence in the context of indecent exposure under North Carolina law.
NEW TRIAL.
Judge Calabria concurs.
Judge Murphy dissents by separate opinion.
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No. 17-1324 – State v. Hoyle
MURPHY, Judge, dissenting.
I agree that the Majority’s holding is a logical extension of the “could have seen
had they looked” language employed by our Court and the Supreme Court in Fusco
and Fly, respectively. Further, requiring that a victim of indecent exposure be able
to see such exposure “had they looked” in order to establish the “in the presence of”
element of indecent exposure would typically be an appropriate application of the rule
of lenity. However, I dissent because the General Assembly specifically intended for
our courts to construe the words of the indecent exposure statute as expansively as
our constitutions permit. Specifically, when the General Assembly enacted the base
indecent exposure statute, N.C. Gen. Stat. § 14-190.9, it expressly and unequivocally
stated its intent that:
Every word, clause, sentence, paragraph, section, or other
part of this act shall be interpreted in such manner as to
be as expansive as the Constitution of the United States
and the Constitution of North Carolina permit.
1971 S.L. 591 § 2. This broad interpretation mandate excludes the rule of lenity from
our normal canons of statutory construction.
Fly and Fusco applied this broad approach based on the facts presented in
those cases. See State v. Fly, 348 N.C. 556, 560, 501 S.E.2d 656, 659 (1998) (stating
that “the majority of the Court of Appeals simply misread the legislative history and
the specifically expressed intent of the legislature which repealed the former statute
and adopted N.C.G.S. § 14-190.9”). In neither Fly nor Fusco did the defendant argue,
STATE V. HOYLE
MURPHY, J., dissenting.
as Defendant does here, that the State failed to establish the “in the presence of”
element of indecent exposure.
Here, however, the Majority’s opinion takes a narrow view of the presence
element of indecent exposure, and the “could have seen had they looked” standard
adopted by the Majority today is not an element of N.C. Gen. Stat. § 14-190.9. The
Majority’s interpretation disregards the General Assembly’s intent that this statute
be interpreted in as expansive of a manner as the North Carolina and United States
constitutions permit. The trial court was not required to deviate from the pattern
jury instruction regarding the “in the presence of” element, and the trial court’s
decision to omit Defendant’s proffered addition was not an abuse of discretion. See
N.C.P.I. Crim. 238.17A. Therefore, I respectfully dissent.
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